MARITAL WASTE

MARITAL WASTE

What is marital waste? Marital waste is essentially disposing of a marital asset to the detriment of the marital community. In Arizona, the statute governing marital waste is A.R.S. 25-318(C) stating as follows:

C. This section does not prevent the court from considering all actual damages and judgments from conduct that resulted in criminal conviction of either spouse in which the other spouse or a child was the victim or excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

The key language in the law as it relates to waste is “excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community property”. The trial court is specifically authorized to consider these things when apportioning community property.

As an example, if one spouse withdraws money from a bank account or retirement account and the other spouse shows evidence of the withdrawal(s). Then the spouse that withdrew the money has the burden to prove what it was used for or where it went. If they are unable to prove that it was used for the benefit of the marital community, the other spouse (non-withdrawing) is entitled to be reimbursed for their half of the money that was taken.

The Arizona Court of Appeals established this principal back in 1998 in the case of Gutierrez v. Gutierrez, stating in part, as follows:
“The spouse making the withdrawals should bear the burden of showing that the money was spent to benefit the community. See Troutman v. Valley Nat’l Bank of Arizona, 170 Ariz. 513, 517, 826 P.2d 810, 814 (App.1992) (“The party who asserts a fact has the burden to establish that fact.”). We hold that the spouse alleging abnormal or excessive expenditures by the other spouse has the burden of making a prima facie showing of waste. It is then the burden of the spending spouse to go forward with evidence to rebut the showing of waste because all of the evidence relative to the expenditures is generally within the knowledge, possession, and control of the spending spouse.” Gutierrez v. Gutierrez 193 Ariz. 343, 972 P.2d 676 (Ariz. App. Div. 1, 1998).

Waste is not limited to withdrawing money from an account, but can also apply to, among other things, selling community assets, gambling, drug use or spending money on an extramarital affair.

This article is for informational purposes only. The information contained herein is not legal advice, nor is it intended to be. Readers should not act upon the information contained herein without first seeking the advice of a qualified attorney. Please contact Daniel J. Siegel, P.C. with any questions, 602-274-1099.